Graham & Sanders Pty Ltd v Camden Council

[2022] NSWLEC 1278

Land and Environment Court

New South Wales

Medium Neutral Citation:

Graham & Sanders Pty Ltd v Camden Council [2022] NSWLEC 1278

Hearing dates:

31 March 2022

Date of orders:

2 June 2022

Decision date:

02 June 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:
(1) The appeal is upheld.
(2) Modification application DA/2018/599/2 made to the Court on 18 October 2021 is approved and development consent DA/2018/559/1 granted by the Court on 30 July 2021 for the demolition of an existing dwelling house and the construction of a commercial development comprising three commercial tenancies and a café on the land described as Lot 6 DP 357010 and known as 20 Elizabeth St Camden is modified in the terms set out in Annexure A.
(3) As a consequence of the modification, development consent DA/2018/599/2 is subject to the consolidated, modified conditions of consent set out in Annexure B.
(4) Exhibits are returned with the exception of Exhibits 1, 5, 6 and A, which are retained.

Catchwords:

MODIFICATION APPLICATION – commercial development and cafe – modification to alter roof form – whether overdevelopment of site – whether inconsistent with character of heritage conservation area – whether approval contrary to public interest

Legislation Cited:

Camden Local Environmental Plan 2010

Environmental Planning and Assessment Act 1979, ss 4.5, 4.15, 4.55, 4.56, 8.14, Sch1 cl 20

Cases Cited:

Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2021] NSWLEC 116

Graham & Sanders Pty Ltd v Camden Council [2021] NSWLEC 1433

Lido Real Estate Pty Ltd v Woollahra Council (1997) 98 LGERA 1

Texts Cited:

Camden Development Control Plan 2019

Land and Environment Court of NSW, Practice Note – Class 1 Development Appeals, (April 2018)

Category:

Principal judgment

Parties:

Graham & Sanders Pty Ltd (Applicant)
Camden Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
Dr J Smith (Respondent)

Solicitors:
Mills Oakley (Applicant)
Swaab (Respondent)

File Number(s):

21/295333

Publication restriction:

Nil

Judgment

The Applicant seeks approval to modify a development consent

1. COMMISSIONER: The Applicant seeks approval to modify the terms of a development consent granted by the Court (Consent) for the demolition of an existing dwelling house and the construction of a commercial development comprising three commercial tenancies and a café (Approved Development). The land to which the Consent applies is Lot 6 DP 357010, known as 20 Elizabeth St, Camden (Site).

2. The Approved Development consists of two buildings. The building fronting Elizabeth St is a two-storey building with an attic level located within a gabled roof. There is a second building at the rear. This is also a two-storey building with an attic level. The roof of the rear building was also originally proposed to be constructed with a gabled roof. However, this was changed to a hipped roof with gablets in response to the Council’s comments on the form and scale of the building as originally proposed. The Applicant now seeks approval for the reinstatement of the roof form originally proposed for the rear building and associated changes to the Approved Development which are detailed below.

3. The Applicant has made the application (Modification Application) to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act). This is not an appeal against a decision of the Council, but an application invoking the original jurisdiction of the Court to modify consents granted by the Court.

4. The Consent was granted by the Court on 30 July 2021: Graham & Sanders Pty Ltd v Camden Council [2021] NSWLEC 1433 (the earlier appeal). The Council had initially refused development consent for the Applicant’s development application. However, following amendments to the development application (which included the change to the roof form of the rear building referred to in par [2], the Council informed the Court that all of its contentions had been resolved and that it had entered into consent orders which provided for the grant of development consent subject to conditions. For completeness, I note that, in accordance with par [99] of the Court’s Practice Note – Class 1 Development Appeals, the Court heard evidence (both oral and written) from a number of local residents and, before granting development consent, satisfied itself that:

1. the residents’ concerns, particularly in relation to potential heritage impacts, had been satisfactorily addressed;

2. relevant jurisdictional pre-requisites had been met;

3. relevant matters under s 4.15 had been taken into consideration; and

4. the grant of development consent was in the public interest.

The modifications sought by the Applicant

5. The Applicant seeks approval to modify the Consent in the following ways (Proposed Modifications):

1. The introduction of gable ends to the rear portion of the roof over Tenancy 3 resulting in an increase in the attic level lettable area by 31.62 m²;

2. The introduction of an additional skylight on the north and south side of the gabled roof;

3. The changing of the north and south windows from fixed and hung to sliding windows;

4. The introduction of metal privacy screens to the first floor and the attic’s north and south facing windows to Tenancies 1 and 2; and

5. The inclusion of documentation relating to accessible car parking.

6. As noted above, the change to the roof form will reverse one of the agreed changes made to the design to overcome the Council’s objections to the original application in the earlier appeal.

7. The proposed change to the roof form can be seen in the following figures:

Figure 1 – the Approved Development

Figure 2 – the proposed modification to the roof form

The Site and its context

8. The Site is rectangular and has a frontage of 19.5 m to Elizabeth St. It has a maximum depth of 50.4 m and an area of 993.5 m². The Site slopes by just over a metre from front to back and the entire site is flood affected to both 5% and 1% annual exceedance probability levels and the probable maximum flood level.

9. The locality is in transition. The Site is located on the edge of the Camden local commercial centre and contains a mix of single storey dwellings, some commercial/industrial developments, a Girl Guides’ hall and a large storage shed. The Nepean River and rural floodplains are located to the north and east of the site.

10. The former Camden high school is located at the end of the street and the Council has granted development consent for the redevelopment of that site as a substantial mixed-use development comprising 57 multi-unit dwellings, 108 self-contained seniors living dwellings, a 76 bed residential care facility, a 51 bed motel, restaurant, cultural and community centre, medical centre and ancillary shops.

11. Development consent has also been granted for the development of a mixed-use development comprising two commercial tenancies and a dwelling at 11 Mitchell St, Camden, which adjoins the Site.

Planning controls

12. The Site is zoned B4 Mixed Use under the Camden Local Environmental Plan 2010 (LEP). The objectives of that zone are:

•  To provide a mixture of compatible land uses.

•  To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

•  To minimise conflict between land uses within the zone and land uses within adjoining zones.

•  To encourage development that supports or complements the primary office and retail functions of the local centre zone.

13. The Approved Development has a maximum building height of 10.3 m and exceeds the maximum height development standard of 7 m contained in cl 4.3 of the LEP. This exceedance of the height development standard was the subject of a successful request under cl 4.6 of the LEP in the earlier appeal.

Jurisdictional prerequisites

14. Section 4.56 of the EPA Act enables an application for the modification of a consent granted by the Court to be made to the Council. However, as noted above, in this case the Modification Application is made by the Applicant direct to the Court pursuant to s 4.55(8) of the EPA Act, which extends the operation of s 4.55 to enable the Court to modify a consent granted by it.

15. Where the Modification Application is made direct to the Court, it is the relevant provisions of s 4.55, not s 4.56, that apply to the Modification Application.

16. In this case the type of modification proposed is a modification in accordance with s 4.55(2) of the EPA Act. That sub-section is as follows:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

17. In relation to s 4.55(2)(a), the Council quite properly does not contend that the development as proposed to be modified is not substantially the same development as the development for which consent was originally granted. The material or essential features of the Approved Development, in my view, comprise the construction of a commercial development consisting of three commercial tenancies and a café in accordance with the plans which form part of the Consent. The Approved Development is two storeys in height and will contain an attic level that will also be used for commercial purposes. None of these material or essential features will change if the Approved Development is modified in the manner proposed by the Modification Application and the modified development will, in my view, remain “essentially or materially” the same and will have “the same essence” as the Approved Development. Accordingly, I am satisfied that the development as proposed to be modified is substantially the same development as the development for which consent was originally granted.

18. In relation to the other jurisdictional pre-conditions contained in s 4.55(2):

1. The Modification Application does not propose the modification of a condition imposed as a requirement of a concurrence to the Consent or in accordance with the general terms of an approval proposed to be granted by the approval body. Section 4.55(2)(b) therefore does not apply.

2. As required by s 4.55(2)(c), the Modification Application was publicly notified by the Council between 29 October and 22 November 2021.

3. The Council received 22 submissions in response to the public notification of the Modification Application. As required by s 4.55(2)(d), I have taken those submissions into account in the determination of the Modification Application in the manner discussed later in this judgment.

Relevant merit considerations

19. Section 4.55(3) of the EPA Act provides that, in determining an application for the modification of a consent, the consent authority must take into consideration:

1. such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application; and

2. the reasons given by the consent authority for the grant of the consent that is sought to be modified.

Section 4.15(1) – relevant matters for consideration

20. The Council contends that the Modification Application should be refused for three reasons:

1. The Proposed Modifications result in development that is an overdevelopment of the Site because of its excessive height, bulk, scale and roof form.

2. The Proposed Modifications result in development which is inconsistent with the existing character of the heritage conservation area and would have a detrimental impact on the heritage items in the vicinity of the Site.

3. The approval of the Modification Application is not in the public interest having regard to the first two contentions and the submissions received from the objectors.

The reasons given for the grant of the Consent

21. Section 4.55(3) of the EPA Act also requires the Court to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. The Council submits that this requires consideration to be given to the reasons given by the Court in granting consent in the earlier appeal which, the Council says, requires consideration of the evidence given in that appeal.

Expert evidence

22. Mr Brian McDonald (engaged by the Council) and Mr John Oultram (engaged by the applicant), heritage experts, conferred and prepared a joint report (Ex 3).

23. The heritage experts agree that:

1. The existing building on the Site is not itself listed as a heritage item in Sch 5 Part 1 of the LEP.

2. The Site is located within the Camden Town Centre Conservation Area (HCA).

3. The Site is in the vicinity of several heritage items located in Elizabeth St and Mitchell St, Camden.

24. The heritage experts also agreed that the issues in contention are:

1. The acceptability of the change in roof form to the rear section of the Approved Development from a hipped roof and gablet to a gabled form.

2. The acceptability of the proposed change in height to the outer sections of the roof.

3. Whether the impact of these changes on the HCA and heritage items in the vicinity of the Site is acceptable.

25. The heritage experts agree that the changes proposed by the Modification Application that are not associated with the roof form are not in contention.

Mr Oultram’s evidence

26. Mr Oultram’s evidence is that the local area is quite mixed in terms of style and form and has a considerable mix of development types. In his opinion, the immediate area has little consistency in character and, while the older, period cottages are grouped towards the southern end of Elizabeth Street and in Mitchell Street, they do not provide a defining character to the rear of the Site. He points to the existence of several other nearby properties which have a traditional gabled roof such as those at 18 Mitchell Street and particularly the two-storey building at 1-3 Mitchell Street and says that the proposed modified roof form responds to the common period typologies such as these which, in his view, “allows an easy fit into the local streetscape”.

Figure 3 – Two storey house with gabled roof form at 1 – 3 Mitchell St

27. Mr Oultram’s evidence is that the Approved Development has a combination of a gabled form to the front and hipped roof form at the rear with gablets. He says that this represents a combination of Victorian and Federation style roofs and “introduced a complexity to the roofs” that he considers to be “unnecessary”. The Proposed Modifications will result in both sections of the buildings having a gabled roof which he says will provide “a simplicity of form and detail while only resulting a modest increase to the overall roof form”.

28. Mr Oultram believes that the Proposed Modifications will still maintain a separation of the roof forms between front and rear buildings that will allow the rear form to read as a subservient element in perspective. He says that the ridge height will not change from that previously approved except for the rear section which, because the Site falls away to the rear, will be higher. His evidence is that the fall is not apparent from the street and that, in his opinion, it would be “perverse” to lower the rear section of the building to provide a consistent height from the ground level. He says the scale of the development is larger than a traditional Victorian house but that commercial development of the type proposed is allowed under the planning controls and that the development will have a “strong division” at the roof level between the front and rear sections.

29. Mr Oultram gave evidence that the proposed development will provide a two- storey backdrop to the cottages at Nos 7 and 9 Mitchell St, which are listed as heritage items in the LEP, but is well separated from the cottages by their gardens. His evidence is that, while the new roof form will be visible over the cottages, it is only slightly larger than the currently approved roof form, is set well back from the Mitchell St frontage and will provide a simple backdrop to the heritage cottages. He also points out that the proposed and approved development at 11 Mitchell Street has a two-storey form to the rear that he says will provide a more immediate backdrop when viewed from Mitchell Street. This, on Mr Oultram’s evidence, is demonstrated in the following views:

Figure 4 – View of proposed and approved development at 20 Elizabeth St from Mitchell St opposite heritage items at 7 and 9 Mitchell St

Figure 5 – the same view as in Figure 4 but showing the proposed modified development

30. Mr Oultram acknowledges that the cottages at 7 and 9 Mitchell St are distinctive in their form but points out that there are no existing plantings on the Site that provide a green backdrop apart from the Eucalypt and that is to be retained. The proposed development (both as approved and as proposed to be modified) will, he says, not block views to the items and “is well scaled to the general pattern of development in the area”. His evidence is that the proposal “draws on historic forms and materials and is a good fit into the local street and… will have a limited and acceptable impact on the items”.

Mr McDonald’s evidence

31. Mr McDonald is critical of the Applicant seeking to resile from the amended roof design it agreed to in the earlier appeal. He says that the application should be assessed in the context of the prevailing planning controls and that, in this part of Camden, the flood design level severely restricts the ability to erect a building with a pitched roof which complies with the applicable 7 m height limit. The proposed building exceeds the 7 m height standard by approximately 4 m at the highest point. His evidence is that in the circumstances the compromise reached in the earlier appeal to arrive at the approved design is “generous” and notes that a strict application of the height development standard would not permit any mezzanine floor space. In Mr McDonald’s view, “the attempt to achieve yet another 31m² of Gross Floor Area by reinstating the originally proposed gable roof form is unacceptable in this context”.

32. While he appeared to agree with Mr Oultram that the difference between the approved and proposed modified roof forms will not be readily perceived from the street or standing behind the heritage listed items at 7 and 9 Mitchell St, Mr McDonald’s evidence is that the impacts of new development in the HCA and in the vicinity of heritage items are not restricted to how the development will be seen from the public domain. He says that it is also important to understand how the proposed development will be seen from within adjacent and nearby properties.

33. Mr McDonald’s evidence is that the street block bounded by Elizabeth Street, Mitchell Street, Edward Street and Exeter Street “is characterised by an open central open space comprising the rear yards of the properties”. The bulk and scale of the gable roof as now proposed will, in Mr McDonald’s opinion, “impinge on the open character of the central space and be a dominant element when viewed from within the street block and from the rear of heritage items at 1 -3, 7 and 9 Mitchell Street”.

31. Mr McDonald gave evidence that, because the Site slopes to the east, the height of the eastern apex of the roof of the rear building will, if the Modification Application is approved, be 657 mm higher than in the Approved Development.

32. Mr McDonald’s evidence is that the currently approved roof design provides a much better separation between the front and rear roof forms than would be the case if the Modification Application is approved and says that this “significantly reduces the aggregated bulk of two gabled roofs”. In his opinion, there is nothing complex or unnecessary about the currently approved roof form which he says is a conventional roof form adopted throughout the Federation period. His evidence is that Camden township evolved through the Federation period and that there are many houses with hipped and gablet roofs in the Camden township. He has counted sixteen, some of which are within the HCA, but says there may be more.

33. Mr McDonald also gave evidence that the reinstatement of a longer gable roof is not the only way to address the alleged complexity of the roof form. Deletion of the gablets to a plain hipped roof form would, he says, also address this issue. Nevertheless, he maintains that the hipped and gablet roof form is not “complex”.

Evidence of local residents

37. As noted in par [18(3)] above, following the public notification of the Modification Application, the Council received 22 submissions. A useful summary of the issues raised by those submissions is contained in the Council’s Statement of Facts and Contentions (Ex 1):

• Inconsistency with HCA;

• Excessive bulk and scale;

• Out of character with the area;

• Inconsistent with the controls of the Camden Development Control Plan 2019 (DCP) and LEP;

• The proposed development is detrimental to the streetscape and surrounding heritage items;

• The proposed development is not substantially the same design;

• Increases overshadowing and loss of solar access;

• Privacy and overlooking concerns;

• Non-compliance with building codes regarding maximum height;

• Contravenes requirement for a maximum of two-storey by increasing the size of the attic;

• Non-compliance with BCA regarding fire exit travel distance; and

• Non-compliance with BCA disability provisions and accessibility.

38. The Court also heard oral evidence from a number of residents on site at the commencement of the hearing. This oral evidence elaborated on the issues listed above and also raised concerns about the outcome of the earlier appeal and the Council’s decision to enter into consent orders in that matter.

39. I have taken the residents’ submissions, both written and oral, into consideration in determining the appeal. In my view most of the objections raised relate to the Approved Development rather than the changes that will be made by the Modification Application. To the extent that the objectors have raised concerns in relation to the impacts of the Modification Application, for the reasons given below, I have found that those impacts are acceptable and do not warrant the refusal of the Modification Application.

Council’s submissions

40. The Council submits that the Modification Application does not merit approval. It argues that there are 3 steps involved in the consideration of the application:

1. The application should be considered in the light of the relevant planning controls;

2. As required by s 4.55(3) of the EPA Act, the Court should reflect on the reasons given by the Court for the grant of the Consent; and

3. As also required by s 4.55(3) of the EPA Act, the Court should weigh up the evidence of the expert witnesses and the local residents.

41. The Council submits that the Court should have regard to the evidence given by Mr Oultram, the Applicant’s heritage expert, in the earlier appeal as indicating that the modifications now proposed are unacceptable. The Council points to the following statements about the amendments to the development application in the Heritage Impact Statement prepared by Mr Oultram in March 2021 (Ex 2, Tab 6 at pp 97, 98):

“The roof forms have been amended to retain the gabled roof to the front but the rear roof form has been altered to a hipped roof with gablets to more strongly differentiate the two sections of the building…

The development is in the form of separated, hipped and gabled wings to allow a clear division between the front and rear. In perspective the rear form will read as a lower element providing a descending scale to the rear…

The use of a hipped roof form over the rear provides differentiation with the front section and, allied to the reduction in the length of this element, will provide a ‘major-minor’ relationship to the sections…

The reduction in the length of the rear section, allied to the change in roof form, will considerably lessen the bulk and scale of the rear section that is amplified by the increase in landscaped, open are (sic) to the east.”

42. The Council says that this evidence should be contrasted with that given by Mr Oultram in the current proceedings (Ex 3, p 5):

“The approved design was altered to a hipped and gabled roof form in response to Council’s comments on the form and scale of the building. However the change introduced a complexity in the roof form that was, in my view, unnecessary…

The approved scheme had a combination of a gabled form to the front and hipped roof form at the rear with gablets. The proposals provided a combination of Victorian and Federation style roofs and introduced a complexity to the roofs that I consider was unnecessary. The use of gabled forms to both sections of the buildings provides a simplicity of form and detail while only resulting a modest increase to the overall roof form.”

43. The Council submits that in the short period between the preparation of the Heritage Impact Statement in March 2021 and the making of the Modification Application, there had been no change in the relevant planning controls and no change in the factual circumstances surrounding the Consent. The Council says that the difference between the statements made by Mr Oultram in the Heritage Impact Statement and his evidence in these proceedings is like “chalk and cheese”. The Council is highly critical of what it sees as Mr Oultram’s change in position on the acceptability of the proposed modified roof form and submits that the Court should, first, discount his evidence in the current appeal in the light of his evidence in the earlier appeal and the unchanged evidence of the Council’s expert, Mr McDonald, in both appeals and, secondly, take Mr Oultram’s evidence in the earlier appeal into account “because it was the foundation for the Court’s decision in the earlier appeal” and therefore a mandatory consideration in accordance with s 4.55(3) of the EPA Act.

44. In the Council’s submission, the language used by Mr Oultram in the earlier appeal leads to the clear conclusion that changes were made to make the development “acceptable” and that, by a process of logic, reversing those changes must necessarily make the development as now proposed to be modified, “unacceptable”.

45. The Council submits that the Modification Application should be refused:

1. For the reasons articulated in the Council’s statement of facts and contentions (Ex 1);

2. For the reasons set out in the Court’s decision in the earlier appeal and the supporting evidence;

3. For the reasons given by Mr McDonald in the joint expert report (Ex 3);

4. Having regard to the planning controls particularised in the statement of facts and contentions (Ex 1); and

5. In the public interest.

Applicant’s submissions

46. The Applicant submits that the changes made to the roof form in the earlier appeal concerning the original development application are not a relevant consideration pursuant to s 4.55(3) and s 4.15 of the EPA Act. It says that what is directly relevant are:

1. The matters set out in s 4.55(2) and (3) of the Act;

2. The reasons given by the consent authority for the grant of consent, being the judgment of Chilcott C in the earlier proceedings; and

3. The matters of relevance in s 4.15, which include the LEP and DCP.

47. The Applicant makes several submissions in relation to Mr McDonald’s evidence:

1. First, the Applicant points out that Mr McDonald appears to agree with Mr Oultram that the proposed roof form “will not be readily perceived from the street or standing behind the heritage listed cottages at 7 and 9 Mitchell St” (Ex 3, p 11). It then says that, contrary to Mr McDonald’s evidence, the relevant test is not whether or not the roof form can be seen from anywhere (public domain or private properties as in this case) but whether the roof form is consistent or compliant with the relevant planning controls. In this regard the Applicant submits that Mr McDonald does not say that the proposed roof form offends any specific controls within the DCP.

2. Secondly, in relation to the criticism made by Mr McDonald in relation to Mr Oultram’s view that the Proposed Modifications correct a roof form which is unnecessarily complex, the Applicant submits that, while Mr Oultram’s opinion about a benefit that the proposal brings is something he is entitled to say, nothing in this application turns on that evidence. The Applicant submits that the Proposed Modifications do not need to be justified per se and says that the task of the consent authority is to assess the proposal against the applicable planning controls and determine if any impact is acceptable.

48. The Applicant submits that the Modification Application must be assessed in the context of the prevailing planning controls. It says that the proposal “is compliant with all aspects of the LEP, it does not add to the maximum height (although being a modification that would not require a cl 4.6 objection in any event) and there is no express FSR control”. Importantly in this context, the Applicant submits that Mr McDonald does not isolate any aspect of the DCP with which he says there is non-compliance.

49. The Applicant submits that the Proposed Modifications comply with the relevant planning controls in both the LEP and the DCP called up by s 4.55(3) and warrants the grant of approval.

Findings on s 4.15 merit issues

50. With one exception, I accept the Applicant’s submission that the development as proposed to be modified complies with the relevant provisions of both the LEP and the DCP. The one exception is in relation to the height of the building. The building height already exceeds the height development standard contained in cl 4.3 of the LEP and was the subject of a successful request under cl 4.6 of the LEP in the earlier appeal. The applicable maximum building height for the Site is 7 m and the height of the approved roof form is 11.2 m. Mr McDonald’s evidence (Ex 3, p 12) is that, because the Site slopes to the east, the height of the eastern apex of the roof of the rear building will, if the Modification Application is approved, be 657 mm higher than in the Approved Development.

51. The height development standard does not, strictly speaking, apply to the modification of an existing development consent but is a relevant matter for my consideration in accordance with s 4.55(3) and s 4.15 of the EPA Act: see Lido Real Estate Pty Ltd v Woollahra Council (1997) 98 LGERA 1.

52. In the earlier appeal, Commissioner Chilcott said (at par [30]) that he was satisfied that:

1. the Applicant’s written request under cl 4.6 of the LEP had adequately addressed the matters required to be demonstrated by subcl 4.6(3) of the LEP;

2. the proposed development would be in the public interest because it is consistent with the objectives of the height development standard in cl 4.3 of the LEP and the objectives for development within the B4 zone in which the development is proposed to be carried out; and

3. the Applicant’s written request to vary the height development standard was well founded and should be upheld.

53. Given that the roof is already higher than the permitted maximum, in my opinion the additional minor exceedance of the height development standard that will occur on the eastern edge of the roof if the Modification Application is approved does not warrant the refusal of the application. The additional area of exceedance will not, on the evidence of both experts, be readily perceived from the street. To the extent that it may be visible from within some of the adjoining properties I find that any additional impact associated with the Proposed Modifications will be acceptable in the circumstances.

54. The Council contends that the Modification Application results in a development that is an overdevelopment of the Site because of its excessive height, bulk, scale and roof form. It says that the height and length of the rear roof form results in a building that adversely dominates the streetscape and adjoining properties to the detriment of those properties. However, in my assessment the scale of the proposed development has already been largely determined by the granting of Consent in the earlier appeal. In my view the proposed changes to the roof form of the rear building will have little, if any, impact on the perception of the scale of the buildings both when viewed from the street and from within adjoining properties. In relation to the perception of bulk and scale of the building when viewed from the street, as noted above, the evidence of both heritage experts is that the changes to the roof of the rear building will not be readily perceived from the street. While the proposed development will be visible from within some of the adjoining properties, I find that the additional impact of the proposed changes to the roof form will make very little difference to the perception of the bulk and scale of the proposed development from that already approved.

55. In the present appeal the Council says the Court must look at the evidence given by the expert heritage witnesses in the earlier appeal and contrast that with the evidence given in this appeal. It says that the evidence of the Council’s expert, Mr McDonald has been consistent in both the earlier appeal and in this appeal and should be preferred to the evidence of the Applicant’s expert, Mr Oultram, who the Council submits has changed his position about the acceptability of the proposed roof form.

56. I do not see the evidence given by Mr Oultram in the two appeals as indicating that he has changed his position on the acceptability of the roof form now proposed. It is not unusual in the context of a Class 1 appeal for an applicant to make changes to the proposed development in order to overcome objections raised by a consent authority. That Mr Oultram considered the changes made to the roof form in the earlier appeal to be “acceptable” does not mean that he believed the amended roof form then proposed was the only acceptable response to the contentions raised by the Council or indeed that the original gable roof form was unacceptable. In the joint expert report (Ex 3, p 5), Mr Oultram explains that the approved design was a response to the Council’s comments on the form and scale of the building in the earlier appeal but says that, in his opinion, this “introduced a complexity in the roof form that was… unnecessary”. I cannot accept the Council’s submission that this evidences a change of opinion by Mr Oultram who clearly thinks that both roof forms are acceptable from a heritage perspective.

57. In relation to the change in roof form, I accept Mr Oultram’s evidence that the proposed gable roof form is not inconsistent with the roof form of other buildings in the local area including, I might add, the already approved building to be erected on the Elizabeth St frontage of the Site. Both experts agreed that the proposed changes to the roof form would not be readily visible from the street and, in my view, the proposed changes will be hardly noticeable when looking to the Site from Mitchell St. To the extent that the amended roof form will be visible from within any of the adjoining properties, in my view, the changes are minor and acceptable.

58. While I accept Mr McDonald’s evidence that the Approved Development achieves “better” separation between the front and rear buildings, that does not mean that the separation proposed by the Modification Application is unacceptable. In this regard I accept Mr Oultram’s evidence that the Proposed Modifications will still maintain a separation of the roof forms between front and rear buildings and that this will allow the rear form to read as a subservient element in perspective.

59. It follows from those findings that, in my view, the development as proposed to be modified will not have an unacceptable heritage impact on either the HCA or on any of the nearby heritage items.

60. The Council raised a separate contention that the Modification Application should be refused because its approval would be contrary to the public interest. However, the contention was framed primarily in terms that the public interest would not be met because of the other contentions raised and the submissions received from the objectors. As I have found that the Proposed Modifications are acceptable on merit and that none of the issues raised by the objectors warrant the refusal of the Modification Application, it follows that I find that the approval of the Modification Application would not be contrary to the public interest in this respect.

61. The Council also contended that the approval of the Modification Application would set an undesirable precedent and, for that reason, would also be contrary to the public interest. While the Council indicated at the hearing that all contentions were pressed, it did not lead any evidence and did not make any submissions as to how the approval of the Modification Application would create an undesirable precedent (for example by pointing to other similar applications that might be approved if the Modification Application is approved). The Council has not, in my opinion, established any basis on which the Court could find that the approval of the Modification Application will create an undesirable precedent.

Consideration of the reasons given for the grant of Consent

62. Section 4.55(3) of the EPA Act also requires the Court to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. The Council submits that this requires consideration to be given to the reasons given by the Court in granting consent in the earlier appeal which, the Council says, requires consideration of the evidence given in that appeal.

63. I have assumed for the purposes of this appeal that the obligation imposed by s 4.55(3) extends to the reasons given by the Court in its judgment in the earlier appeal. However, it is not entirely clear that this is so:

1. The obligation imposed on a consent authority by cl 20 of Pt 1 of Sch 1 of the EPA Act to give public notification of the reasons for the decision does not appear to extend to the reasons given by the Court in a judgment in a Class 1 appeal.

2. Clause 20(1) of Pt 1 of Sch 1 of the EPA Act provides that the clause applies to the following decisions:

1. the determination by the Minister (or the Independent Planning Commission) of an application for State significant infrastructure;

2. the determination by the Minister (or the Independent Planning Commission) of a request for a modification of an approval for State significant infrastructure (being a request that was publicly exhibited);

3. the determination by a consent authority of an application for development consent;

4. the determination by a consent authority of an application for the modification of a development consent (being an application that was publicly exhibited); and

5. the granting of an approval, or the decision to carry out development, by a determining authority where an environmental impact statement was publicly exhibited under Division 5.1.

3. While the decision of the Court in the earlier appeal is taken to be the final decision of the consent authority (EPA Act, s 8.14(2)), the consent authority remains the Council – see EPA Act, s 4.5. The reference to “consent authority” in cl 20(1)(c) of Pt 1 of Sch 1 of the EPA Act remains a reference to the Council rather than the Court exercising the function of the consent authority in a Class 1 appeal.

64. I accept, however, that the reasons given for the decision to grant development consent in the earlier appeal would, in any event, be a relevant matter for consideration in the public interest under s 4.15(1)(e) of the EPA Act, if those reasons are relevant to the modification the subject of the Modification Application.

65. In the Court’s consideration of the Modification Application, I have had regard to the reasons given in the decision of the Court granting the Consent in the earlier appeal. Of relevance to the Modification Application, Commissioner Chilcott said:

1. (at par [23]) that the Applicant had submitted a written request, pursuant to cl 4.6 of the LEP, to vary the development standard in cl 4.3 which states (amongst other things) that:

1. The height non-compliance is located centrally and to the rear of the Applicant’s proposed built form and within a pitched roof element;

2. the height non-compliance is located away from the sensitive front, rear and side boundaries of the Site;

3. the pitched roof form now proposed for the proposed building form is responsive to the character of the HCA and of the heritage items within the vicinity of the Site; and

4. strict compliance with the height standard would require the removal of the traditional pitched roof form which would be contrary to the character of built form within the HCA and within the streetscape in relation to both historic and newer infill developments, and would prejudice the visual aesthetic of the HCA and the setting of heritage items in the vicinity of the site.

2. (at par [34]) that the contentions raised by the Council had included a contention about the height, bulk, scale and roof form of the Proposed development and whether this represented an overdevelopment of the Site;

3. (at par [36]) that the experts now agreed that the Proposed development as amended satisfactorily responded to:

1. the pitched roof form of the Proposed development;

2. the descending roof form of the rear building; and

3. the impact of the Proposed development on the heritage significance and character of the Camden HCA.

66. In my view, beyond indicating that the roof form the subject of the earlier appeal was considered acceptable (both by the parties’ experts and the Court), there are no reasons given in the judgment in the earlier appeal that have any bearing on whether the modifications proposed by the Modification Application are acceptable. By necessity, the Court’s decision is focussed on the development that was the subject of the application before it. It was not necessary for the Court to express any view about the acceptability of the Applicant’s original proposal. The Court’s reasons do not give any indication of whether the Consent would still have been granted if the roof form now proposed had been a part of the development the subject of its consideration.

67. While the Council invites the Court to go beyond the judgment of the Court to consider the evidence of the parties’ experts (and, in particular, that of the Applicant’s heritage expert, Mr Oultram) in the earlier appeal, in my view the consideration of the Court’s reasons for granting the Consent must be gleaned from the Court’s decision itself and not from a consideration of the evidence that was before the Court. This view finds support in the recent decision of Robson J in Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2021] NSWLEC 116 where his Honour said (at [70]):

“I consider that the use of the definitive “the” as well as the past participle “given” in the second sentence of s 4.55(3) of the EPA Act restricts the consent authority’s obligation to consider reasons to those objectively identifiable reasons that are specifically produced by the consent authority when granting the original consent.”

68. In the case of a decision of the Court in a Class 1 appeal, the “objectively identifiable reasons that are specifically produced” are those contained within the Court’s judgment itself. As noted above, I am unable to find anything in the Court’s reasons in the earlier appeal of relevance to the task before me of deciding whether the modifications proposed by the Modification Application are acceptable.

Conclusion

69. I am satisfied that the preconditions at s 4.55(2) of the EPA Act are met and that the Court, as consent authority, has power to grant consent to the Modification Application. In relation to s 4.55(3), for the reasons given above, I find that, on merit, the exercise of that power is warranted as the development as proposed to be modified complies with the relevant planning controls (other than height, which I have found is nevertheless acceptable) and will not have an unacceptable heritage impact on either the HCA or on any of the nearby heritage items.

70. Accordingly, I find that the modification application should be approved subject to the conditions, which were agreed between the parties, in Annexure A.

Orders of the Court

71. The Court orders that:

1. The appeal is upheld.

2. Modification application DA/2018/599/2 made to the Court on 18 October 2021 is approved and development consent DA/2018/559/1 granted by the Court on 30 July 2021 for the demolition of an existing dwelling house and the construction of a commercial development comprising three commercial tenancies and a café on the land described as Lot 6 DP 357010 and known as 20 Elizabeth St Camden is modified in the terms set out in Annexure A.

3. As a consequence of the modification, development consent DA/2018/599/2 is subject to the consolidated, modified conditions of consent set out in Annexure B.

4. Exhibits are returned with the exception of Exhibits 1, 5, 6 and A, which are retained.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (156832, pdf)

Annexure B (304917, pdf)

Architectural Plans (2946337, pdf)

**********

Decision last updated: 02 June 2022